Joshua Bond, Plaintiff-Appellee, v. Gianna Pandolfi de Rinaldis, Defendant-Appellant.
No. 16AP-756 (C.P.C. No. 12JU-12-16016)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
March 13, 2018
[Cite as Bond v. Pandolfi, 2018-Ohio-930.]
HORTON, J.
(REGULAR CALENDAR)
D E C I S I O N
Rendered on March 13, 2018
On brief: Joshua Bond, pro se. Argued: Joshua Bond.
On brief: Sowald, Sowald, Anderson, Hawley & Johnson, Beatrice K. Sowald, and Eric W. Johnson, for appellant. Argued: Eric W. Johnson.
APPEAL from the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch
HORTON, J.
{¶
{¶ 2} The following summary of the factual and procedural background relevant to this appeal is from the opinion resolving the first appeal, Bond v. Pandolfi de Rinaldis, 10th Dist. No. 15AP-646, 2016-Ohio-3342 (hereinafter ”Bond I“):
Pandolfi and plaintiff-appellee, Joshua Bond, are the parents of a son named Andrew. Although the parties were engaged for a short period, they never married.
Andrew was born on September 27, 2012. As Andrew‘s mother, Pandolfi had the discretion to determine how Andrew‘s surname would appear on his birth certificate. See
R.C. 3705.09(F)(2) . Without consulting Bond, Pandolfi chose the surname “Pandolfi de Rinaldis Cano” for Andrew.On December 11, 2012, Bond filed a complaint seeking a judgment (1) determining the existence of a parent/child relationship between him and Andrew, (2) changing Andrew‘s surname to include Bond‘s surname, and (3) establishing a child custody arrangement and the amount of child support owed. Shortly after filing his complaint, Bond moved for an order allocating the parental rights and responsibilities for Andrew in accordance with the shared parenting plan that Bond filed with his motion.
The parties submitted to genetic testing, which established a 99.99 percent probability that Bond was Andrew‘s father. Subsequent to the testing, the trial court issued an agreed judgment entry that determined that a father/child relationship existed between Bond and Andrew. The trial court reserved ruling on the remaining issues in the case.
On March 19, 2013, the magistrate issued temporary orders requiring Bond to pay child support to Pandolfi and granting Bond parenting time with Andrew. Additionally, at Pandolfi‘s request, the magistrate appointed a guardian ad litem for Andrew.
Over the course of five days in November 2013, the parties presented evidence at a hearing before the magistrate. During the hearing, the parties primarily focused on two issues: (1) whether Andrew‘s surname should be changed, and (2) the appropriate custody arrangement. * * * With regard to the custody arrangement, Bond sought shared parenting according to the plan that he had submitted to the trial court. That plan gave the parties equal parenting time with Andrew. Pandolfi resisted shared parenting and, instead, asked to be named the sole residential parent and legal custodian of Andrew. Pandolfi planned to return to her home in Puerto Rico, and she wanted to take Andrew with her. She proposed that Bond would exercise parenting time through video chatting, as well as four face-to-face visits per year.
The guardian ad litem recommended that the trial court adopt shared parenting, with Bond exercising parenting time every Monday from 5:45 p.m. until Tuesday at 7:30 a.m., every Wednesday from 5:30 p.m. until 7:30 p.m., and alternating weekends from Friday at 5:45 p.m. until Sunday at 6:00 p.m. The guardian also recommended that the parties follow the applicable local rule in determining which parent would have Andrew on the holidays, with the exception that the regular parenting time schedule would apply during winter and summer breaks. Finally, the guardian recommended that the trial court preclude Bond from leaving Andrew alone with Bond‘s father, Jeffrey Bond.
The magistrate issued a decision on September 3, 2014. In that decision, the magistrate concluded that a change of Andrew‘s surname to “Bond-Pandolfi de Rinaldis” was in Andrew‘s best interest. The magistrate also concluded that shared parenting was in Andrew‘s best interest. The magistrate, however, did not approve the shared parenting plan that Bond had submitted. The magistrate found the parenting time schedule recommended by the guardian more appropriate for Andrew than the schedule in Bond‘s shared parenting plan, with one exception. Instead of maintaining the regular parenting time schedule during the winter break, as the guardian recommended, the magistrate found it more appropriate to give each parent a ten-day block of parenting time during the winter break. The magistrate ordered Bond to submit an amended shared parenting plan that comported with the magistrate‘s findings regarding parenting time. Finally, with regard to child support, the magistrate deviated downward from the guideline child support amount and ordered Bond to pay $600 per month effective January 1, 2013. The trial court approved and adopted the magistrate‘s decision on the same day that it was filed.
Bond complied with the magistrate‘s order that he file an amended shared parenting plan. The magistrate then reviewed the amended plan. On October 21, 2014, the magistrate issued a decision finding the amended plan in Andrew‘s best interest and adopting that plan as the shared parenting decree. The trial court approved and adopted the magistrate‘s decision on the same day that it was filed.
Pandolfi objected to both of the magistrate‘s decisions. The trial court held a hearing on Pandolfi‘s objections. At the hearing, both Pandolfi and Bond testified. In a judgment issued June 12, 2015, the trial court found one of Pandolfi‘s objections moot and denied the remaining objections.
Id. at ¶ 2-12.
{¶ 3} Pandolfi appealed, raising six assignments of error. Relevant to the present
THE TRIAL COURT IMPROPERLY APPROVED AND ADOPTED A PARENTING PLAN THAT PROVIDED APPELLANT WITH LITTLE MEANINGFUL OPPORTUNITY TO RETURN TO HER HOME IN PUERTO RICO AT ANY TIME WITH THE MINOR CHILD.
Id. at ¶ 13.
{¶ 4} We overruled this assignment of error, reasoning as follows:
By her fourth assignment of error, Pandolfi argues that the trial court abused its discretion in approving a shared parenting plan that only allows for one ten-day trip to Puerto Rico every other year. This argument presumes that the trial court approved the amended shared parenting plan that Bond submitted upon the magistrate‘s order. However, the trial court instead approved Bond‘s original shared parenting plan, which was admitted as Exhibit 9 at the hearing. The original shared parenting plan follows the model parenting time schedule set forth in former Loc.R. 22 with regard to holidays and vacations. Pandolfi, therefore, may arrange a two-week vacation with Andrew every summer. Pandolfi will also receive parenting time with Andrew during one-half of every winter break, as well as the entirety of spring break every other year. The trial court found the original shared parenting plan was in Andrew‘s best interest because it afforded Pandolfi sufficient periods of time throughout the year to travel. We see no abuse of discretion in this finding. Accordingly, we overrule Pandolfi‘s fourth assignment of error.
Id. at ¶ 46.
{¶ 5} We overruled Pandolfi‘s other assignments of error and affirmed the trial court‘s judgment. Id. at ¶ 59. The decision was released on June 9, 2016.
{¶ 6} On August 12, 2016, Pandolfi filed a motion in the trial court under
{¶ 7} Bond opposed the motion. He argued that it would be “inappropriate” to apply
{¶ 8} On October 24, 2016, the court sustained Pandolfi‘s motion. In a one-page judgment entry, the trial court stated only that it had “mistakenly referenced ‘Plaintiff‘s Exhibit 9’ rather than the Amended Shared Parenting Plan,” and adopted the September 16, 2014 plan instead. (Oct. 24, 2016 Jgmt. Entry.)
{¶ 9} After the trial court sustained her motion and granted the relief
THE TRIAL COURT IMPROPERLY APPROVED AND ADOPTED A PARENTING PLAN THAT PROVIDED APPELLANT WITH LITTLE MEANINGFUL OPPORTUNITY TO RETURN TO HER HOME IN PUERTO RICO AT ANY TIME WITH THE MINOR CHILD.
{¶ 10} In support of her appeal, Pandolfi argues that the trial court abused its discretion by adopting a parenting plan that only provides her with “only an extremely limited opportunity to travel to Puerto Rico (or elsewhere) during her allotted parenting time.” (Appellant‘s Brief at iv.) She argues that even under the model parenting time schedule in the trial court‘s local rules, she would have received substantially more uninterrupted parenting time than the ten-day period during winter break allowed by the final plan adopted by the trial court. (Appellant‘s Brief at 11.) She cites Bond‘s own testimony, during which he stated that he would have “no problem” with each parent having two weeks of uninterrupted parenting time during the summer. (Appellant‘s Brief at 12.) Pandolfi describes the trial court‘s allocation of vacation time as “completely arbitrary” and asks that this court remand this case with instructions to allow “appropriate vacation time” in the parenting plan. (Appellant‘s Brief at 14.)
{¶ 11} In response, Bond agrees with Pandolfi‘s characterization of his testimony, and that he has always been in favor of “equal holiday time and summer vacation” for each parent to spend with the child. (Appellee‘s Brief at 9.) He attributes the abbreviated ten-day period to an “oversight” by the guardian ad litem in her original recommendation. Id. However, he questions Pandolfi‘s motives for appealing a motion she prevailed on in the trial court. (Appellee‘s Brief at 15.) Bond asserts that the trial court erred when it sustained Pandolfi‘s
{¶ 12} Pandolfi replies by asserting that Bond cannot challenge the trial court‘s judgment because he failed to file a notice of cross-appeal, as required by App.R. 4, and has therefore waived any challenge to the judgment. (Reply Brief at 7-8.)
{¶ 13} Appellate courts apply an abuse of discretion standard when reviewing a trial court‘s decision under
{¶ 14} We first note that the doctrine of invited error prevents Panfoldi from challenging the trial court‘s judgment. “Under the doctrine of invited error, an appellant, in either a civil or a criminal case, cannot attack a judgment for errors committed by himself or herself, for errors that the appellant induced the court to commit, or for errors which the appellant is actively responsible.” In re J.B., 10th Dist. No. 11AP-63, 2011-Ohio-3658, ¶ 10. “Under this principle, a party cannot complain of any action taken or ruling made by the court in accordance with that party‘s own suggestion or request.” Id. Here, Pandolfi moved the trial court under
{¶ 15} It must be emphasized that the plan adopted by the trial court when sustaining Pandolfi‘s motion is considerably less favorable to her goal of having extended vacation time than the one previously adopted and affirmed by this court. In the first plan, each parent was expressly allowed to “arrange an uninterrupted vacation of not more than two (2) weeks with the child” during the summer, as well as being given half of winter break every year and half of spring break in alternating years, whereas in the second plan the maximum uninterrupted vacation duration is ten days during winter break, with no provision for summer vacations or spring break. Pandolfi convinced the trial court to adopt a plan less favorable to her goal of uninterrupted vacation time than the existing one, and, by doing so, provided a basis for this appeal. In short, it is difficult to interpret her post-appeal
{¶ 16} The proper course of action is to seek modification of the plan under
{¶ 17} Furthermore, we reject Pandolfi‘s argument that Bond‘s failure to file a notice of cross-appeal precludes his attack on the trial court‘s
{¶ 18} We also note that an appellate court is authorized under App.R. 12 to decide any assignment of error not raised by the parties where the error is evident from the record. Hungler v. Cincinnati, 25 Ohio St.3d 338, 341 (1986) (“an appellate court may pass on errors not assigned by the parties“). In order to “recognize error not assigned by the parties, there must be sufficient basis in the record before it upon which the court can decide that error.” (Emphasis sic.) Id. at 342. See also State v. Peagler, 76 Ohio St.3d 496, 499 (1996) (stating that App.R. 12 “allows a court of appeals discretion in deciding to address an issue not briefed or raised below, the court of appeals must base any factual conclusions reached upon evidence that
{¶ 19}
“[T]he basic distinction between clerical mistakes that can be corrected under
Civ.R. 60(A) and substantive mistakes that cannot be corrected is that the former consists of ‘blunders in execution’ whereas the latter consists of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because, on second thought, it has decided to exercise its discretion in a different manner.”
Brewer at ¶ 13, quoting Wardeh v. Altabchi, 158 Ohio App.3d 325, 331, 2004-Ohio-4423, ¶ 10 (10th Dist.).
{¶ 20} In Wardeh, we held that a trial court‘s ruling under
{¶ 21} In conclusion, we overrule Pandolfi‘s assignment of error because the doctrine of invited error prevents her from challenging a judgment that she induced the trial court to adopt. Her remedy for modifying the parenting plan exists under
Judgment reversed; case remanded.
BROWN, P.J. and KLATT, J., concur.